New Jersey is among the majority of the states in the U.S. in allowing, under the supervision of a doctor, the possession and use of marijuana for medical purposes. The New Jersey Compassionate Use Medical Marijuana Act (CUMA), N.J. Rev. Stat. § 24:6I-1 et seq., enacted in 2009, defines permissible uses for the drug, establishes prescription guidelines for doctors, and creates a registry for patients. Federal law, however, still classifies marijuana as a Schedule I controlled substance, meaning that as far as the federal government is concerned, marijuana has “no currently accepted medical use in treatment.” 21 U.S.C. §§ 812 (b)(1)(B), (c)(I)(c)(10). Possession of marijuana with a valid prescription could therefore still be illegal under federal law. In an employment context, medical marijuana use that is entirely legal in New Jersey could lead to problems. Neither federal nor New Jersey employment discrimination laws prohibit adverse employment actions based on lawful medical marijuana use, but a bill currently pending in the New Jersey Assembly intends to change that.
The New Jersey Legislature, in enacting CUMA, found that “[m]odern medical research has discovered a beneficial use for marijuana in treating…certain debilitating medical conditions,” regardless of what federal law says. N.J. Rev. Stat. § 24:6I-2(a). It also found that state law enforcement officials are not responsible for enforcing federal laws and that “[c]ompassion dictates that “medical marijuana patients should be “protect[ed] from arrest, prosecution, property forfeiture, and criminal and other penalties.” Id. at § 24:6I-2(e). The provisions of CUMA mainly deal with registration of patients and certification of doctors.
The statute currently places no obligations or restrictions on employers. Section 16 of CUMA specifically states that employers are not required “to accommodate the medical use of marijuana in any workplace.” Id. at § 24:6I-14. The New Jersey Law Against Discrimination (NJLAD) does not include medical marijuana use as a protected category. See N.J. Rev. Stat. § 10:5-12(a). While it does include disability as a category, this is not likely to offer much protection for medical marijuana users. Not all conditions for which medical marijuana may be prescribed would qualify as disabilities under the NJLAD. Even if the underlying condition did qualify as a disability, it is conceivable that an employer could justify taking an adverse action because the employee’s conduct violates federal law, instead of because of the disability. This is where the proposed bill comes in.